Issue link: https://maltatoday.uberflip.com/i/977918
54 maltatoday SUNDAY 6 MAY 2018 A party to a contract cannot be found in breach for an action that is not regulated ad verbatim by the contract itself. This was explained in the case of Anici Band and Social Club vs Ghaqda Muzikali San Gorg Martri, presided over by Madame Justice Anna Felice, who stated that the Court was certain that the present case was undoubtedly motivated by the strong sense of rivalry between the band clubs. The judgement was delivered on 26 April 2018 by the First Hall of the Civil Courts. The Court heard the facts presented by the parties, which explained that the two band clubs, both found in Hal Qormi, had created a contract in 1999 in order to regulate which marches could be played by the respective clubs. The parties agreed to send to each other the names of the marches to be used and their composers in upcoming librettos, at least one month prior to their usage in performances. The band clubs would usually prepare lists of marches they would use every two years, and were obliged by contract to send the names to the other band club whereby the receiving band club had 15 days to state whether or not they agreed with the songs included based on criteria in the contract. The contract stated that no band club was to play any march listed in the annexed docu- ments in the contract, and none could use any march written before 1987 except for a few which were agreed upon, and that if one band club used a particular march in their libretto which was composed after 1987, then the other could not use the same march. The band club going against the contract was to pay a fee of Lm500 (equivalent to €1,164.69c). The Court heard the plaintiff stating that they had sent the marches that were going to be included in their libretto to the defendant, and they received no disagreement within the prescribed 15 days. The defendants, however, sent a letter after the 15 days stating that they had an issue with the plaintiffs using the march "Cuore d'Argento" because they had bought it from the composer. It resulted that both the plantiff and the defendants used the march in that year when performing for the public. The plaintiff, however, argued with the Court that the defendant was in breach of contract since they did not send a written disagreement within 15 days, and that this meant they could not use the march themselves. The Court pointed out that in matters of contract the latin maxin pacta sunt servanda is always to be applied. This means that the parties are bound to what they agreed to. However, citing the judgement Anthony Blackman et vs Nob-bli Alexander Apap Bologna, the Court stated that when parties make an agreement, it is to be presumed that whatever they wished to include in the contract was included, to the exclusion of what they did not intend to agree upon. The Court stated that the march "Cuore d'Argento" did not fall within any of the categories prohibited to be performed by the band clubs. The Court held that the latin maxim "contra te- stimonium scriptum testimonium non scriptum non fertur" is applied as a rule of thumb by courts. This means that when there is written proof of an agreement then non-written evidence by means of witnesses and evidence should not overturn the agreement. The contract should be presumed to contain all that which the origi- nal drafters intended to include. The Court therefore stated that the defendant could have used the march even if they had not sent their disagreement in time as the contract was silent on this fact. The Court finally agreed with the defendant that the contract in no way could be interpreted as any band club having exclusive rights over a march simply because the other band club did not send a disa- greement within 15 days. The court held that the plaintiff's claim was to be totally dismissed, but that each party was to bear their own costs. Dr Malcolm Mifsud is partner, Mifsud & Mifsud Advocates Opinion A n applicant submitted a proposal to construct retail shops and garages in Triq Bugharbiel corner with Triq Xandru Pulis in Zejtun. The site includes a building, which applicant intended to restore part thereof. Nevertheless, the request was rejected by the Commission on the following grounds: 1. The proposal was in breach of Legal Notice 227 of 2016 since back yards were not being provided. Applicant was reminded that every dwelling, except corner dwellings, with a depth of more than fifteen metres, require a backyard equivalent to at least six metres width or to the entire plot width if such plot width is less than six metres; 2. The proposed development ran counter to the provisions of policies P39 and P35 of the Development Control Design Policy, Guidance and Standards 2015 in that top floors were not adequately set back from the street façade; 3. The proposal was in violation of Urban Objective 3 of the Strategic Plan for Environment and Development which aims to protect and enhance the character and amenity of urban areas; 4. The proposed development sought the extensive demolition of a Grade 2 listed building. The interventions would therefore significantly alter the current setting. Reference was made to Thematic Objective 8 of the Strategic Plan for Environment and Development which aims for the safeguarding and enhancement of cultural heritage. As expected, applicant appealed the decision before the Environment and Planning Review Tribunal, insisting that permission should have been granted. In his appeal application (rikors), applicant (now, appellant) put forward the following arguments: 1. Contrary to what the Commission had stated, the site was 'technically exempted from the need of a backyard'. To support his statement, applicant referred to Article 13(2) of the Development Planning (Health and Sanitary) Regulations 2016. Applicant contended that the Authority may choose to deviate from the exact definition of the regulations if there are justified planning and sanitary reasons. Given the site configuration, a conventional backyard was deemed 'unjustified'; 2. The proposed designs were in keeping with the streetscape; 3. Contrary to what the Authority had purported, the proposal sought to 'protect, restore, enhance and utilise an underutilised Grade 2 listed building'. In reply, the Authority disagreed with applicant/appellant, insisting that 'every dwelling, except corner dwellings, with a depth of more than fifteen metres, requires a backyard equivalent to at least six metres width or to the entire plot width if such plot width is less than six metres.' Furthermore, the case officer argued that a significant part of the scheduled property was earmarked for demolition, resulting in a significant change in the urban setting. The officer also noted that appellant had already made an attempt to deschedule the said property, which request was turned down. After taking note of the visual characteristics in the immediate vicinity, the Tribunal held that applicant's building stood out of context. Having said that, the Tribunal observed that the Cultural Heritage Advisory Committee (CHAC) had committed to inspect the premises but nonetheless failed to carry out a site inspection. For this reason, the Tribunal ordered the Committee to submit a technical opinion following a visual assessment. The Tribunal concluded that it will take a decision thereafter. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law Robert Musumeci Applicant contended that the Authority may choose to deviate from the exact definition of the regulations if there are justified planning and sanitary reasons Malcolm Mifsud When parties create a contract it should be presumed that only that which was written was intended to form part of the agreement Decision to be taken following inspection of Heritage Board